STATE OF NEW JERSEY VS. STAN BRAXTON (01-07-0505, CUMBERLAND COUNTY AND STATEWIDE) ( 2017 )

NOT FOR PUBLICATION WITHOUT THE
APPROVAL OF THE APPELLATE DIVISION
This opinion shall not "constitute precedent or be binding upon any court."
Although it is posted on the internet, this opinion is binding only on the
parties in the case and its use in other cases is limited. R. 1:36-3.
SUPERIOR COURT OF NEW JERSEY
APPELLATE DIVISION
DOCKET NO. A-4183-15T3
STATE OF NEW JERSEY,
Plaintiff-Respondent,
v.
STAN BRAXTON,
Defendant-Appellant.
___________________________
Submitted October 24, 2017 - Decided November 16, 2017
Before Judges Hoffman and Mayer.
On appeal from Superior Court of New Jersey,
Law Division, Cumberland County, Indictment
No. 01-07-0505.
Joseph E. Krakora, Public Defender, attorney
for appellant (Mark Zavotsky, Designated
Counsel, on the brief).
Jennifer Webb-McRae, Cumberland County
Prosecutor, attorney for respondent (Stephen
C. Sayer, Assistant Prosecutor, of counsel and
on the brief).
PER CURIAM
Defendant appeals from a January 12, 2016 order denying his
petition for post-conviction relief (PCR) after evidentiary
hearings. On appeal, defendant maintains he received ineffective
assistance from trial counsel that deprived him of his
constitutional right to a fair trial. We disagree and affirm.
Defendant was convicted of one count of second-degree
aggravated assault, N.J.S.A. 2C:12-1b(1), and four counts of
third-degree aggravated assault, N.J.S.A. 2C:12-1b(5), resulting
from an altercation with several corrections officers while
defendant was incarcerated at South Woods State Prison. Defendant
was sentenced to a total of nine years on the charges.
At trial, defendant alleged he did not assault a corrections
officer. Rather, defendant testified that he was attacked without
cause by several corrections officers in retaliation for
defendant's filing of a harassment complaint against an officer.
According to defendant, while he was showering, officers threw his
clothes into the shower and attacked him.
The trial testimony on behalf of the prosecution offered a
different version of the events. According to prosecution
witnesses, while showering, defendant exposed himself to a female
corrections officer. Defendant also made a lewd remark directed
at the female officer via the prison's intercom system. The
prosecution claimed that the officers called to the shower area
asked defendant to exit the shower and get dressed. The
prosecution maintained that defendant refused to comply and lunged
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at one of the officers. Corrections Officer Stewart Richardson
attempted to intervene and was assaulted by defendant. Richardson
sustained an orbital fracture and deviated septum requiring
surgery.
Defendant's convictions and sentences were affirmed on direct
appeal. State v. Braxton, No. A-4024-04 (App. Div. May 31, 2006).
The Supreme Court denied defendant's petition for certification.
State v. Braxton, 188 N.J. 355 (2006).
Defendant filed his initial PCR petition on October 31, 2006.
On October 9, 2009, the PCR judge denied defendant’s petition
without an evidentiary hearing. Defendant appealed the denial of
his initial PCR petition. On November 2, 2011, we reversed and
remanded the matter to the PCR judge to appoint new counsel and
conduct a hearing. Following our remand, the PCR judge held
evidentiary hearings on three different dates. The PCR judge
denied defendant’s petition in a written opinion dated January 12,
2016.
The PCR judge heard testimony from Dr. Rodolfo Diaz, the
doctor who performed surgery to repair Richardson's nasal injury.
Dr. Diaz was examined as to the initial radiological report finding
no facial fractures and his own medical report finding facial
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fractures.1 Dr. Diaz explained the inconsistencies between the
two reports. Dr. Diaz acknowledged that the initial CAT scan
reported no fractures, but noted that a subsequent addendum by the
radiologist, viewing a different angle of the scan, confirmed the
same injuries identified in Diaz's report.
Defendant's trial counsel, Demetrius Parrish, also testified
during the evidentiary hearings. Parrish had limited recall
regarding the trial proceedings and his trial strategy. The PCR
judge concluded from Parrish's testimony that the defense trial
strategy was self-preservation, with defendant claiming he was
shielding himself against attacks by the corrections officers and
that Richardson's injury was the result of Richardson's contact
with other officers. PCR counsel asked Parrish why he did not
cross-examine Dr. Diaz about an alleged pre-existing condition
suffered by Richardson. Parrish recalled that he elected to cross-
examine Richardson on the matter rather than Dr. Diaz.
Richardson also testified during the evidentiary hearings.
He was unable to recall specific details about the incident leading
to his injury. Richardson remembered that he was injured and had
surgery to repair his nose. He also testified that the handwriting
on the first incident report form was not his, but he acknowledged
1
The radiologist prepared an addendum to his initial report which
confirmed the presence of facial fractures.
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he signed and dated the form. The first incident report confirmed
Richardson was "struck in the eye/cheek area" but did not mention
difficulty breathing. Richardson also reviewed a second incident
report and acknowledged that the second form did not indicate he
was having difficulty breathing.
The PCR judge also heard from defendant. Defendant testified
that he was harassed by several corrections officers and introduced
into evidence his handwritten grievance regarding his harassment
complaint filed prior to the shower incident. Defendant also
introduced disciplinary complaints filed against him by different
corrections officers, including Richardson, relating to the shower
incident. According to defendant, his trial counsel failed to
cross-examine the corrections officers at trial about those
complaints and reports. Defendant also testified that he never
discussed self-defense with his trial counsel and counsel's
inclusion of such a defense during voir dire was "unethical."
Defendant further claimed that trial counsel failed to cross-
examine Dr. Diaz about Richardson's radiological scan indicating
no fractures, and failed to point out a "falsified" section of the
radiologist's addendum report because it was in a different font
type.
The PCR judge allowed defendant to submit twenty-six
additional documents into evidence in support of his PCR petition.
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The PCR judge also allowed defendant to reopen his direct testimony
to raise two additional issues: conspiracy between defense counsel
and the prosecutor to assert a false defense, and the withholding
of exonerating evidence by counsel. However, defendant failed to
present any evidence in support of these claims. The PCR judge
rejected defendant's unsubstantiated and convoluted theories in
support of his additional claims.
The PCR judge considered written summations from counsel and
defendant. Defendant's summation attached additional documents
not introduced during the evidentiary hearings. The PCR judge
considered defendant's additional documents despite defendant's
failure to introduce the documents into evidence during the
hearings.
In his written findings of fact and conclusions of law, the
PCR judge rejected defendant's allegation that Dr. Diaz fabricated
Richardson's facial fractures and conspired with the State to
bolster the case against defendant. The PCR judge accepted the
testimony of Dr. Diaz as credible as to differences between his
own medical report and the radiologist's reports.
On the failure to examine whether Richardson had a pre-
existing condition, the PCR judge found that was a trial strategy
decision. It was undisputed that Richardson had a deviated septum,
and trial counsel decided against examining Dr. Diaz on the issue.
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Instead, trial counsel elected to cross-examine Richardson on
whether he came into contact with any other corrections officers
during the shower altercation.
Similarly, the PCR judge rejected defendant's contention that
the corrections officers' reports should have been used to impeach
their trial testimony. The PCR judge found the purported
inconsistencies between the information in the officers' written
reports and their trial testimony were insignificant and that the
jury had ample opportunity to assess the credibility of the
witnesses.
Lastly, the PCR judge rejected defendant's claim that certain
evidence should have been proffered to support the theory that his
conviction was the result of a conspiracy among the corrections
officers, the surgeon who treated Richardson, the radiologist who
reviewed Richardson's radiological scan, the prosecutor, defense
counsel and the trial judge, because defendant failed to offer
evidence in support of his conspiracy theory.
On appeal, defendant contends that he was denied effective
assistance of trial counsel based upon: (1) counsel’s failure to
challenge the testimony of both Dr. Diaz and Richardson, which was
used to establish the elements of aggravated assault; (2) counsel’s
failure to object to certain hearsay testimony offered by
Richardson; and (3) counsel’s failure to request an adverse
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inference charge based upon the State’s loss of exculpatory
evidence.
Defendant raises the following points on appeal:
POINT I
DEFENDANT WAS DENIED THE EFFECTIVE ASSISTANCE
OF COUNSEL ENTITLING HIM TO POST CONVICTION
RELIEF.
A. COUNSEL WAS INEFFECTIVE FOR FAILING TO
CHALLENGE THE MEDICAL TESTIMONY PRESENTED BY
OFFICER RICHARDSON [sic] WHICH WAS USED TO
ESTABLISH THE ELEMENTS OF AGGRAVATED ASSAULT
FOR WHICH DEFENDANT WAS CONVICTED.
B. COUNSEL WAS INEFFECTIVE FOR FAILING TO
OBJECT TO THE HEARSAY TESTIMONY OF OFFICER
RICHARDSON’S CHARACTERIZATION OF A MEDICAL
OPINION REGARDING INJURIES HE CLAIMED TO HAVE
SUSTAINED DURING A CONFRONTATION WITH
DEFENDANT.
C. COUNSEL WAS INEFFECTIVE FOR FAILING TO
MOVE FOR AN ADVERSE INFERENCE CHARGE WITH
REGARD TO THE VASELINE JAR BECAUSE IT
FORECLOSED A LIKELY SUCCESSFUL DEFENSE OF
RETALIATION AGAINST DEFENDANT FOR REPORTING
OFFICER RICHARDSON TO HIS SUPERIORS FOR ABUSE
OF AUTHORITY.
In reviewing factual findings based upon witness testimony
at a PCR evidentiary hearing, we apply a deferential standard.
State v. Nash, 212 N.J. 518, 540 (2013). "[W]e will uphold the
PCR court's findings that are supported by sufficient credible
evidence in the record." Ibid.
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To prevail on a claim of ineffective assistance of counsel,
defendant must satisfy the two-pronged Strickland test as adopted
by New Jersey in State v. Fritz, 105 N.J. 42 (1987). First, a
defendant must demonstrate that "counsel's performance 'fell below
an objective standard of reasonableness,' such that [counsel] 'was
not functioning as the "counsel" guaranteed . . . by the Sixth
Amendment.'" State v. Hess, 207 N.J. 123, 146 (2011) (quoting
Strickland v. Washington, 466 U.S. 668, 687-88, 104 S. Ct. 2052,
2064, 80 L. Ed. 2d 674, 693 (1984)). However, a reviewing court
should not assess counsel's performance with the benefit of
hindsight. Strickland, supra, 466 U.S. at 689-90, 104 S. Ct. at
2065-66, 80 L. Ed. 2d at 694-95. Second, a defendant must
demonstrate that "there is a reasonable probability that, but for
counsel's unprofessional errors, the result of the proceeding
would have been different." Hess, supra, 207 N.J. at 146 (quoting
Strickland, supra, 446 U.S. at 694, 104 S. Ct. at 2068,
80 L. Ed. 2d at 698). "A reasonable probability is a probability
sufficient to undermine confidence in the outcome." State v.
Marshall, 148 N.J. 89, 157 (quoting Strickland, supra, 466 U.S.
at 694, 104 S. Ct. at 2068, 80 L. Ed. 2d at 698), cert. denied,
522 U.S. 850, 118 S. Ct. 140, 139 L. Ed. 2d 88 (1997)).
Defendant argues that trial counsel's examination of Dr. Diaz
was ineffective for several reasons, including trial counsel's
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failure to cross-examine Dr. Diaz as to his finding of facial
fractures when the radiologist found no such fractures, as well
as his failure to address the font type differences between the
radiologist's original and addendum reports. Additionally,
defendant argues that trial counsel's failure to cross-examine Dr.
Diaz on the absence of any mention of nasal injury in Richardson's
incident reports is further evidence of his counsel's
ineffectiveness. Defendant also contends that his trial counsel
was ineffective for failing to cross-examine Dr. Diaz about
Richardson's possible pre-existing nasal conditions.
We reject defendant's arguments on these grounds. The PCR
judge noted that the strategy advanced by defendant's trial counsel
was to offer evidence establishing Richardson's injuries were
caused by contact with a fellow corrections officer and not
defendant. Therefore, cross-examining Dr. Diaz on any of the
suggested issues would not have advanced the defense theory. We
concur with the PCR judge that the decision not to cross-examine
Dr. Diaz was an exercise of sound trial strategy. See State v.
Arthur, 184 N.J. 307, 332-33 (2005). The mere fact that a trial
strategy failed does not establish a constitutional claim of
inadequacy. Fritz, supra, 105 N.J. at 54.
Defendant next argues that his trial counsel's failure to
object to Richardson's hearsay testimony offering medical opinions
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constituted ineffective assistance of counsel. We reject this
argument as well. The trial judge sustained defense counsel's
hearsay objections to Richardson's testimony about the doctor's
diagnosis as to his medical condition. Because there was
corroborating expert medical testimony from Dr. Diaz explaining
Richardson's injuries, any hearsay that might have been heard by
the jury was harmless. See R. 2:10-2; see also State v. Macon,
57 N.J. 325, 336 (1971) (noting that an error must be capable of
producing an unjust result "sufficient to raise a reasonable doubt
as to whether the error led the jury to a result it otherwise
might not have reached").
Defendant further argues that his trial counsel was
ineffective because he failed to request an adverse inference with
regard to a missing Vaseline jar that defendant claims was
exculpatory.2 Defendant contends the missing Vaseline jar
substantiated his claim that the corrections officers plotted
against him by claiming he used Vaseline to plan an attack, when
defendant asserts the container was actually a soap dish.
2
The original indictment relied on a Vaseline jar to support the
prosecution's claim that defendant preplanned the attack on the
corrections officers and used Vaseline on his body to make it
difficult for the officers to restrain him. However, the
prosecution subsequently lost the Vaseline jar prior to trial.
Defense counsel then successfully moved to dismiss the original
indictment and to suppress any mention of a Vaseline jar during
the trial.
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According to defendant, the suppression of this evidence limited
his retaliation theory. No adverse inference charge was warranted
as all testimony with respect to Vaseline was suppressed by the
trial judge.
As for defendant's claim that his trial counsel was
ineffective in pursuing a self-defense strategy rather than a
retaliation defense, there is no support in the record for his
claim. There was only one mention of self-defense at trial in a
single voir dire question during jury selection. The record
reflects that trial counsel pursued a retaliation defense on
defendant's behalf.
Based upon the sufficient, credible evidence in the record,
defendant failed to demonstrate that his trial counsel's
performance was deficient or prejudicial.
Affirmed.
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